1/36

JUDGMENT NO. 250 OF 2010

Francesco AMIRANTE, President Giuseppe FRIGO, Author of the Judgment

2/36

JUDGMENT NO. 250 YEAR 2010

In this case the Court considered two references from justices of the peace concerning the criminal offence of illegal immigration alleging, inter alia, the violation of the principles of non-discrimination, the principle of nemo tenetur se detegere, the failure to provide for an exemption in cases involving a “justified reason” and the lack of transitory arrangements. The court dismissed the objections on numerous grounds, holding that the State did have a legitimate interest in the control and management of migratory flows, and that the exercise of its policy discretion in this area was only amenable to review if manifestly unreasonable. It also held that the general exemptions from punishment provided for under the criminal law were sufficient and that there was no constitutional requirement for specific exemptions for this particular offence. Finally, the objection based on the lack of transitory provisions was rejected on the grounds that it “essentially amounts to a request for a substantive ruling, the contents of which are undefined and not mandatory under constitutional law ”.

THE CONSTITUTIONAL COURT

composed of: President: Francesco AMIRANTE; Judges: Ugo DE SIERVO, Paolo

MADDALENA, Alfio FINOCCHIARO, Alfonso QUARANTA, Franco GALLO, Luigi

MAZZELLA, Gaetano SILVESTRI, Sabino CASSESE, Maria Rita SAULLE, Giuseppe

TESAURO, Paolo Maria NAPOLITANO, Giuseppe FRIGO, Alessandro CRISCUOLO,

Paolo GROSSI,

gives the following

JUDGMENT

in proceedings concerning the constitutionality of Article 10a of Legislative Decree

no. 286 of 25 July 1998 (Consolidated text of provisions concerning the regulation of

immigration and rules on the status of foreigners), introduced by Article 1(16)(a) of

3/36

Law no. 94 of 15 July 2009 (Provisions on public security), initiated by the Lecco

Justice of the Peace, Missaglia division, by referral order of 1 October 2009 and the

Turin Justice of the Peace by referral order of 6 October 2009, registered respectively as

nos. 292 and 300 in the Register of Orders 2009 and published in the Official Journal of

the Republic nos. 49 and 51, first special series 2009.

Considering the interventions by the President of the Council of Ministers;

having heard the Judge Rapporteur Giuseppe Frigo in chambers on 9 June 2010.

The facts of the case

1.1. – By referral order of 1 October 2009, the Lecco Justice of the Peace, Missaglia

division, raised with reference to Articles 3, 27 and 117 of the Constitution questions

concerning the constitutionality of Article 10a of Legislative Decree no. 286 of 25 July

1998 (Consolidated text of provisions concerning the regulation of immigration and

rules on the status of foreigners), introduced by Article 1(16)(a) of Law no. 94 of 15

July 2009 (Provisions on public security), which punishes with a fine of between 5,000

and 10,000 Euros, “unless the conduct amounts to a more serious offence, any foreigner

who enters into or remains within the territory of the State in breach of the provisions of

the [aforementioned] consolidated text or those contained in Article 1 of Law no. 68 of

28 May 2007” (Provisions on short-term stays by foreign nationals for visits, business,

tourism and study).

The lower court states that it has been seized of criminal proceedings against a non-

Community national accused of the offence provided for under the contested provision

“on the grounds that he entered into and remained within the territory of the State

without authorisation” (an act which is specified in the charge as having been

committed on 13 August 2009).

The charge originates from a control carried out by a Carabinieri patrol, following

which it was ascertained that the foreign national – who did not have any identification

documents – was illegally staying in the country, since he had not applied for a

residence permit within the statutory time limit following his entry into Italy, which

4/36

occurred in December 2007 at the border in the Ventimiglia area. An expulsion order

was therefore issued against him by the office of the Prefect, and he was consequently

ordered to leave the country within five days by the Lecco Chief of Police: this

measure, which was motivated by the fact that it was impossible either to deport the

individual immediately – since it was necessary to carry out supplementary

investigations regarding his identity and to obtain a valid document for international

travel – or to detail him at a Centre for Identification and Expulsion, due to the lack of

space. In parallel, the foreign national had been arraigned, charged with the offence

provided for under Article 10a of Legislative Decree no. 286 of 1998.

In view of these facts, the referring court considers that the contested provision is

unconstitutional first and foremost insofar as is does not specify as one of the

constituent elements of the offence provided for thereunder the lack of a “justified

reason”, thereby avoiding the punishment of individuals whose illegal stay in Italy is in

any case not “reprehensible” on valid objective or subjective grounds, even though it is

not covered by a genuine justification.

In the light of the Constitutional Court’s assertions in relation to the offence

provided for under Article 14(5b) of Legislative Decree no. 286 of 1998 (judgments no.

5 of 2004 and no. 22 of 2007 are cited), it amounts in fact to a provision that is

indispensable in order to bring the criminal offence into line with the principles of guilt

and proportionality (Article 27 of the Constitution), since it can apply in highly different

situations, and also in respect of individuals who do not understand Italian or who enter

into contact with the national legal system for the first time.

It also follows that Article 3 of the Constitution has been violated, given the

irrational difference in treatment compared to the criminal offence provided for under

Article 14(5b), which by contrast contemplates the negative element specified above.

The two criminal offences are in fact fully comparable, since both apply to the illegal

stay by a foreign national in the country: in one case (Article 10a) due to the generic

violation of the provisions of Legislative Decree no. 286 of 1998, whilst in the other

(Article 14(5b)) due to the specific failure to comply with the Chief of Police’s order to

leave the country within five days. The different nature of the obligation violated could

5/36

indeed justify different punishment for the two situations, but not the adoption of

divergent criteria in order to assess the reprehensibility of the conduct.

In this case, the contested omission is claimed to have prevented the defence from

providing evidence – on the grounds that as things stood it was irrelevant – of the fact

that after 8 August 2009 (date of entry into force of Law no. 94 of 2009), it would have

been impossible or at the very least difficult for the accused to leave the State before an

expulsion order was issued against him.

The referring court points out on the other hand that, pursuant to Article 10a(5), the

court must issue an order that there is no case to answer in relation to the offence under

examination in cases in which the foreign national has actually been expelled or refused

entry pursuant to Article 10(2) of Legislative Decree no. 286 of 1998. The contested

provision is also claimed to violate the principles of equality (Article 3 of the

Constitution) and blame (Article 27 of the Constitution) in this regard, since it treats the

same conduct differently depending upon whether the administrative authority – also as

a consequence of its own organisational choices – is able to enforce the refusal of entry

or expulsion or, on the contrary, where it is not able to do so, orders the foreign national

to leave the country at his own expense within five days, in which case the foreign

national would be liable to the severe punishment – imprisonment to a term of between

one and four years – provided for under Article 14(5b) for the failure to comply with

that order.

The contested provision is finally claimed to violate Article 117 of the Constitution

on the grounds that it breaches the provisions of Directive 2008/115/EC of 16 December

2008 on common standards and procedures in Member States for returning illegally

staying third-country nationals. Article 7(1) of the aforementioned Directive lays down

the ordinary procedure for implementing expulsion as voluntary return, providing to this

effect that the foreign national must be granted “an appropriate period for voluntary

departure of between seven and thirty days, without prejudice to the exceptions referred

to in paragraphs 2 and 4”.

The criminalisation of any entry into or illegal stay in the State aims to circumvent

that Community law obligation, rendering applicable the exception provided for under

Article 2(2)(b) of the Directive, pursuant to which the Member States may decide not to

6/36

apply the Directive “to third country nationals who … are subject to return as a criminal

law sanction or as a consequence of a criminal law sanction”. In this way, the ordinary

procedure for implementing expulsion remains immediate deportation by the public law

enforcement authorities, in accordance with the current provisions of Article 13(4) of

Legislative Decree no. 286 of 1998.

Moreover, it cannot be objected that the time limit for bringing the legislation of

Member States into line with the Directive – set for 24 December 2010 (Article 20) –

has not yet expired. Indeed, on 8 August 2009, Directive 2008/115/EC had already been

in force for several months, having entered into force on the twentieth day after its

publication in the Official Journal of the European Union (Article 22). Consequently –

according to the referring court – in order to conclude that Article 10a of Legislative

Decree no. 286 of 1998 does not violate the Directive, it would be necessary to presume

that the national provision was enacted with the intention of repealing or amending it

prior to the expiry of the final deadline for implementation: by contrast, this intention

cannot be inferred either from the letter of the provision – which does not provide for

any temporal limitation of its effect – or its rationale.

1.2. – The President of the Council of Ministers intervened in the proceedings

before the Constitutional Court, represented by the Avvocatura Generale dello Stato,

requesting that the questions be ruled groundless, except with regard to the second,

which should be ruled inadmissible.

As regards the failure to make provision for a “justified reason”, the State

representative points out that the criminal offence in any case remains subject to the

general principles of criminal justice, which include various grounds for exemption

from punishment, including the blameless ignorance of the criminal law provision, the

fact that it would be unreasonable to require the lawful conduct and “good faith”: this

means that there is no difference in treatment compared to other criminal offences

provided for under the same legislation.

With reference then to the provision that an order be made that there is no case to

answer in the event that the foreign national is expelled or refused entry, the question is

claimed to be inadmissible since the referring court is in reality criticising Article 14(5b)

of Legislative Decree no. 286 of 1998, which was not challenged in the proceedings

7/36

before the lower court. The challenge is in any case claimed to be groundless both

because the two cases are not equivalent – as is clear from the different penalties

applicable – as well as because the application of the penalty would in any case be

dependent on the foreign national concerned who illegally enters into or stays within the

territory of the State, and not the public administration which is not able to refuse him

entry or to expel him physically.

Finally, there is claimed to be clearly no violation of Article 117 of the Constitution

as alleged, since the time limit for bringing national law into line with the Directive

invoked by the referring court has not yet expired.

2.1. – By referral order issued on 6 October 2009 during criminal proceedings

against a foreign national accused of the offence provided for under the same contested

provision, the Turin Justice of the Peace raised various questions concerning the

constitutionality of that provision (Article 10a of Legislative Decree no. 286 of 1998),

with reference to Articles 2, 3, 24(2) 25(2) and 97(1) of the Constitution

In the opinion of the lower court, Article 3 of the Constitution has been violated due

to the fact that it breaches the principle of equality on three counts.

It does so first and foremost because – in indiscriminately punishing whoever has

illegally entered into or stayed within the territory of the State – it treats as equivalent

situations that are very different and which have different degrees of social danger. In

fact, it applies in the same way both to foreign nationals who remain in Italy and live

from the proceeds of criminal activity after having entered Italy illegally as well as

those who, notwithstanding their illegal entry and stay without a permit, have

nonetheless integrated themselves into the social community and live honestly, and also

whose who, having entered legally (for example, for a short term stay), have overstayed

their visa on purely contingent grounds, which cannot always be classified as force

majeure occurrences (such as having missed the flight or not received the money

necessary to purchase a travel ticket on time from relatives abroad).

Parliament is also claimed to have taken account of the difference in the situations

that may come into consideration by introducing, through Article 1b of Decree-Law no.

78 of 1 July 2009 (Anti-crisis measures and extension of time limits), converted with

amendments into Law no. 102 of 3 August 2009, a special regime for illegally staying

8/36

foreign nationals who provide assistance to third parties, permitting them to benefit

from a leniency procedure pending which the criminal proceedings were suspended.

The unreasonableness of the new criminal offence may also be appreciated with

reference to the regime of penalties considered overall: that is, not only with reference

to the imposition of a penalty consisting in a fine of between 5,000 and 10,000 Euros,

but also the prohibition on the conditional suspension of the penalty (following the

classification of the offence under the jurisdiction of the justices of the peace: Article 60

of Legislative Decree no. 284 of 28 August 2000 laying down “Provisions on the

criminal law jurisdiction of the justices of the peace, pursuant to Article 14 of Law no.

468 of 24 November 1999”), as well as the right granted to the courts to replace the

pecuniary fine with a significantly harsher sanction, namely expulsion for a period not

shorter than five years (Article 16(1) of Legislative Decree no. 286 of 1998, as amended

by Article 1(16)(b) of Law no. 94 of 2009). In this case, this last provision is claimed to

be the source of unreasonable discrimination compared to the other individuals against

whom an expulsion order may be issued as a replacement measure, namely – pursuant

to Article 16(1) – those convicted of non-negligent criminal offences to a term of

imprisonment not exceeding two years, unless the prerequisites for ordering conditional

suspension are met.

A further violation of the principle of equality is claimed to result from the fact that,

in contrast to Article 14(5b) of Legislative Decree no. 286 of 1998, the contested

provision does not subject punishment to the requirement that the foreign national

remaining within the territory of the State not have any “justified reason”: this formula,

which – as clarified by the Constitutional Court (judgment no. 5 of 2004) – is intended

“to preclude the commission of an offence in situations involving particularly important

impediments which, whilst not amounting to justifications in the technical sense,

impinge upon the very subjective and objective ability to comply with the intimation,

preventing it or rendering it difficult or dangerous”. In this way, the author of the minor

offence provided for under Article 10a would be irrationally put in a less favourable

situation compared to the author of the offence provided for under Article 14(5b) which

is more serious and renders the minor offence moot pursuant to the clause “unless the

conduct amounts to a more serious offence” at the start of the contested provision.

9/36

It is also claimed to violate Article 24(2) of the Constitution by rendering liable to

punishment all foreign nationals illegally present in Italy at the time Law no. 94 of 2009

entered into force unless they have voluntarily left the country. And this is the case

notwithstanding the lack of provision for a time limit and an “operational procedure” in

order to mitigate that rule. This means that such individuals have no option other than to

leave Italy illegally in order to avoid having to turn themselves in, which violates the

principle of nemo tenetur se detegere, as the expression of the right to a defence.

The failure to make provision for the possibility of voluntary departure and the

relative procedures is also claimed to violate Directive 2008/115/EC, Article 7 of which

provides that – other than in certain specific situations – a return decision shall provide

for an appropriate period for voluntary departure of between seven and thirty days,

which may be extended, where necessary, taking into account the specific circumstances

of the individual case.

Article 10a of Legislative Decree no. 286 of 1998 is also claimed to be

incompatible with Article 24(2) of the Constitution on other grounds. According to

Article 38 of the Legislative Decree in fact, minors who are foreign nationals present on

any grounds within the territory of the State are subject to the obligation to attend

school on the same terms as their Italian peers: their parents are responsible for

compliance with that obligation, failing which they may be liable to criminal penalties

(Article 731 of the Criminal Code). In this regard, Article 6(2) of Legislative Decree no.

286 of 1998, as amended by Law no. 94 of 2009, provides however that,

notwithstanding the general rule set forth thereunder, a foreign national is not required

to present to the public administration the documents attesting the legality of his stay in

order to obtain measures regarding compulsory schooling services, in addition to

sporting and recreational activities of a temporary nature and access to healthcare

services pursuant to Article 35. However, whilst Article 35(5) of Legislative Decree no.

286 of 1998 expressly provides that access to healthcare facilities by foreign nationals

whose situation has not been regularised cannot result in any type of report being made

to the authorities, unless it is compulsory to do so on the same conditions as Italian

citizens, an analogous provision is not repeated in relation to compulsory schooling

services. In this way therefore – even though he is not required to present any document

10/36

attesting the lawful nature of his stay in order to register his children with a school – a

foreign national could nonetheless be reported as an “illegal immigrant” by a member of

the school’s staff meeting the requirements specified under Articles 361 and 362 of the

Criminal Code who otherwise becomes aware of the fact that he is an illegal immigrant.

Moreover, given the ease with which that situation may emerge during the course of

teaching activity, any migrant who wishes to comply with the law enacted to guarantee

the right and duty to educate one’s children would in practice be required to turn himself

in for the offence provided for under Article 10a of Legislative Decree no. 286 of 1998,

which amounts to a further violation of the principle “nemo tenetur se detegere”.

The fact that the contested provision does not provide for any form of guarantee in

favour of an illegal immigrant who intends – notwithstanding the other provisions of the

consolidated text – to request authorisation from the Juvenile Court, pursuant to Article

31 of Legislative Decree no. 286 of 1998, to remain in Italy for a fixed term for serious

reasons associated with the protection of an underage family member is also claimed to

be objectionable. If he submitted the application concerned, the foreign national would

therefore once again end up “certifying” his own status as an illegal immigrant, thereby

violating both the principle “nemo tenetur se detegere” as well as Article 3 of the

Constitution due to the unjustified difference in treatment compared to a foreign

national who has submitted an application for international protection. Indeed, Article

10a(6) provides that criminal proceedings are to be suspended in such cases and that the

acceptance of the application will result in a ruling that there are no grounds to

prosecute the offence under examination.

The referring court observes secondly that, considered as a whole, the legislation

enacted by the contested provision has been devised in view of the purpose of requiring

the foreign national to leave the country, which is deemed to be a priority. It is not in

fact necessary to receive clearance from the judiciary in order to enforce the expulsion

of a foreign national subject to criminal proceedings for the offence under examination,

whilst on the other hand, once notice has been received of the expulsion of the foreign

national or of the refusal to grant him entry, the court must issue a ruling that there are

no grounds to prosecute (Article 10a(4) and (5)). Articles 16a [more correctly, 62a] of

Legislative Decree no. 274 of 2000 and 16(1) of Legislative Decree no. 286 of 1998 –

11/36

respectively added and amended by Law no. 94 of 2009 – provide moreover that when

passing sentence for the offence concerned, the justice of the peace may replace the

penalty with a measure of expulsion for a period not shorter than five years, unless the

grounds for exclusion provided for under Article 14(1) obtain.

However, the result of the departure of the illegal immigrant from the territory of

the State was and continues to be attainable through administrative expulsion; this

means that, once the illegal presence of the individual within the territory of the State

has been ascertained, two parallel proceedings that have the same purpose are

automatically initiated, one administrative and the other criminal. However, the latter is

conditional upon the former, since it must be concluded with an order that there are no

grounds to prosecute if the administrative procedure – which runs faster – has

concluded its “natural course”. These arrangements are claimed to violate not only the

principle of reasonableness, but also that of the proper administration of public offices

laid down by Article 97(1) of the Constitution, since they have a negative impact on the

length of trials and cause a needless increase in costs.

The contested provision is also claimed to violate Article 25(2) of the Constitution,

since it subjects a particular personal and social condition to criminal sanction –

specifically that of a person who is an “illegal immigrant” due to the fact that he has not

complied with the provisions of Legislative Decree no. 286 of 1998 – rather than the

commission of an act that causes harm to a right protected under constitutional law. It

would essentially amount to a “guilt due to personal characteristics*” or “the actor’s

manner of being”. This legislative choice must be deemed to be unacceptable since the

imposition of criminal penalties can only be justified when it appears to be

indispensable “in order to ensure that the progress of the social community is

maintained or promoted or when there is a danger that the individual may commit a

criminal offence”. In this case by contrast, whilst it is indeed true that some illegal

immigrants are dedicated to a life of crime, it is equally true nonetheless that many

others are employed – often under conditions of exploitation – or in any case do not

commit offences or threaten collective security.

* Translator’s note: in Italian “colpa d’autore”, similar to the concept of “Täterschuld” in German law.

12/36

Finally, Article 2 of the Constitution, which recognises and guarantees the

inviolable rights of man and requires compliance with inderogable duties of political,

economic and social solidarity is claimed to have been violated due to the state of

extreme poverty in which almost all illegal immigrants live.

As far as the relevance of the questions is concerned, this is evident – in the opinion

of the lower court. Indeed, the foreign national accused in the main proceedings entered

into Italy without a regular visa and did not hold a residence permit, with the result that,

as things stand, he should “almost certainly” be found guilty of the offence charged, as

provided for under Article 10a of Legislative Decree no. 286 of 1998, with the result

that the alternative measure of expulsion may be applied. Moreover, this measure would

have a significant impact on his social integration and family circumstances: according

to the documentation filed in the proceedings, the accused has recently fathered a child

with a non-Community citizen who is lawfully resident, with whom he lives, and who

works as a household assistant with a family and has completed the procedures in order

to regularise her position.

2.2. – The President of the Council of Ministers intervened, represented by the

Avvocatura Generale dello Stato, who requested that the questions be ruled inadmissible

or groundless.

According to the State representative, they are without doubt inadmissible due to

the lack of relevance of the questions concerning Articles 6(2), 31 and 38 of Legislative

Decree no. 286 of 1998, since these provisions are not applicable in the proceedings

before the lower court.

The complaint alleging the violation of Article 3 of the Constitution, relating to the

possibility of replacing the penalty with an expulsion order, is claimed to be equally

inadmissible since the applicability of this provision is mooted as merely contingent.

The same should apply as regards the complaint alleging the violation of Article 2

of the Constitution, since it follows from the referral order itself that the accused is not

poor, and is in employment, as well as the complaint alleging the violation of Article

25(2) of the Constitution, which would appear to lack any “relevance for the trial before

the lower court”.

The remaining challenges are claimed to be groundless.

13/36

In fact, the contested provision is claimed to be the expression of broad legislative

discretion relating to the identification of punishable conduct and the relative penalties:

the exercise of this discretion cannot be deemed to be unreasonable solely on the

grounds that the expulsion order resulting from the application of the criminal penalty

was already provided for as an administrative penalty.

Moreover, the fact as to whether the author of the offence may be identified both as

an honest person as well as a criminal is claimed to be irrelevant. The penalty is in fact

imposed on any person – honest or criminal – who stays unlawfully within the territory

of the State, and hence there is no difference between the situations compared by the

referring court.

Moreover, as far as the failure to make provision for the “quasi excuse” of a

“justified reason” is concerned, the criminal offence in question in any case remains

subject to the general principles applicable to the criminal law, which include the

various grounds for exemption from punishment, such as the blameless ignorance of the

criminal law rule, the fact that lawful conduct could not be required and “good faith”.

As regards the lack of transitory provisions, the contested legislation is substantive

in nature, and therefore the principle laid down in Article 2 of the Criminal Code

applies.

Furthermore, the reference to Article 97 of the Constitution is claimed to be

immaterial, since this is a provision that does not apply to the administration of justice.

Finally, as far as the alleged violation of the principle of solidarity is concerned, the

provision has been incorporated into the text of Legislative Decree no. 286 of 1998,

with the result that political refugees and those who have submitted an application for

international protection will remain guaranteed, as moreover is expressly provided for

under Article 10a(6).

Conclusions on points of law

1. – The Lecco Justice of the Peace, Missaglia division, questions the

constitutionality of Article 10a of Legislative Decree no. 286 of 25 July 1998

14/36

(Consolidated text of provisions concerning the regulation of immigration and rules on

the status of foreigners), added by Article 1(16)(a) of Law no. 94 of 15 July 2009

(Provisions on public security), which punishes with a fine of between 5,000 and 10,000

Euros, “unless the conduct amounts to a more serious offence, any foreigner who enters

into or remains within the territory of the State in breach of the provisions of the

[aforementioned] consolidated text or those contained in Article 1 of Law no. 68 of 28

May 2007”.

In the opinion of the referring court, the contested provision violates Articles 3 and

27 of the Constitution, insofar as it does not include as one of the constituent elements

of the offence the lack of a “justified reason”. In this way, it first renders liable to

punishment also the act of illegally saying that is not “reprehensible” due to valid

subjective or objective reasons, in breach of the principles of blame and proportionality.

Secondly, it is claimed to be a source of an irrational difference in treatment compared

to the analogous criminal offence provided for under Article 14(5b) of Legislative

Decree no. 286 of 1998 (failure to comply “without justified reason” with an order by

the Chief of Police to leave the country).

The contested provision is claimed to violate the same constitutional principles

(Articles 3 and 27 of the Constitution) also on a different ground. Indeed, in providing

that the court must issue a ruling that there are no grounds to prosecute in the event that

the author of the offence is expelled or is refused entry pursuant to Article 10(2) of

Legislative Decree no. 286 of 1998 (Article 10a(5)), it renders the application of a

criminal penalty dependent upon the fact – which is entirely outwith the foreign

national’s control – that the administrative authority is unable to enforce the expulsion

or refuse entry prior to conviction.

It is also claimed to violate Article 117 of the Constitution, since the classification

of any illegal entry or stay in the State as an offence seeks to circumvent Directive

2008/115/EC of 16 December 2008 – according to which an expulsion order must as a

rule be enforced in the form of voluntary return – and to activate the derogation

provided for under Article 2(2)(b) of the Directive in the event that return amounts to a

“criminal law sanction” or the “consequence of a criminal law sanction”.

15/36

2. – Article 10a of Legislative Decree no. 286 of 1998 has also been submitted for

constitutional review by the Turin Justice of the Peace, who also considers that it

violates Article 3 of the Constitution on various grounds.

This is first because, by punishing indiscriminately a foreign national who has

entered into or remained illegally within the territory of the State, it treats as equivalent

factual situations that are very different and subject to different degrees of social

dangerousness.

It is secondly due to the irrational nature of the penalty, which is characterised by

the imposition of a fine of between 5,000 and 10,000 Euros, the prohibition on the

conditional suspension of the penalty and the right of the court to substitute the

pecuniary fine with a significantly more severe penalty, namely expulsion for a period

not shorter than five years: this provision is claimed to be the source of unreasonable

discrimination compared to the other individuals against whom the replacement penalty

may be ordered pursuant to Article 16(1) of Legislative Decree no. 286 of 1998 (those

who have been sentenced to a term of imprisonment not exceeding two years, unless the

prerequisites for ordering conditional suspension are met).

It is thirdly because – in contrast to the position for the more serious offence

provided for under Article 14(5b) of Legislative Decree no. 286 of 1998 – the contested

provision does not subject punishment of the illegal stay within the territory of the State

to the prerequisite that the violation is committed “without justified reason”.

Article 24(2) of the Constitution is also claimed to have been violated since, absent

transitory legislation, the new criminal offence would require all foreign nationals who

are illegally present in Italy at the time that Law no. 94 of 2009 entered into force to

leave Italy illegally in order to avoid having to turn themselves in, in contrast with the

principle of nemo tenetur se detegere, which is a constituent expression of the right to a

defence.

Article 24(2) of the Constitution is also claimed to have been violated on another

ground. Whilst a foreign national who is illegally present within the territory of the State

and who intends to comply with the obligation to attend school to which minors are

subject (Article 38 of Legislative Decree no. 286 of 1998) – an obligation backed up by

a criminal law penalty (Article 731 of the Criminal Code) – is not required to submit

16/36

any document attesting the lawful nature of his stay in order to register his children with

a school (Article 6(2) of Legislative Decree no. 286 of 1998), he would inevitably end

up betraying his status, both due to the ease with which his unlawful situation may

emerge during the course of teaching activity, as well as the existence of an obligation

for members of the school’s staff who meets the requirements specified under Articles

361 and 362 of the Criminal Code to report that fact.

Articles 3 and 24(2) of the Constitution are also claimed to have been violated due

to the fact that the contested provision does not provide analogous guarantees to those

granted to a foreign national who submits an application for international protection

(suspension of criminal proceedings, with an order that there are no grounds to

prosecute the offence in the event it is accepted) to illegal immigrants who intend to file

an application to remain within the territory of the State for the purpose of protecting an

underage family member (Article 31 of Legislative Decree no. 286 of 1998). This

means that, even were the application concerned to be submitted, the foreign national

would end up “certifying” his own status as an illegal immigrant, in breach of the

principle of nemo tenetur se detegere.

The contested provision is also claimed to violate the principles of reasonableness

and the proper administration of public offices (Articles 3 and 97(1) of the Constitution)

since it pursues, in the light of its complex structure, a goal – the removal of the foreign

national illegally present within the territory of the State – that can already be achieved

through the procedure of administrative expulsion, which is in any case initiated in

parallel with the criminal proceedings. This is claimed to have a negative impact on the

reasonable length of trials and to cause a needless increase in costs.

Article 25(2) of the Constitution is claimed to have been violated since the

contested provision imposes a criminal law penalty on a particular personal and social

condition – that of an “illegal immigrant”, resulting from the mere violation of the

provisions regulating entry into and stay within the territory of the State – and not the

commission of an act that causes harm to a right protected under constitutional law.

Finally, Article 2 of the Constitution is claimed to have been violated since the new

punitive provision affects persons almost all of whom live in a state of extreme poverty,

17/36

in contrast with the guarantee that inviolable human rights and the duty of solidarity

must be respected.

3. – The referral orders raise partially analogous questions relating to the same

provision, and therefore the proceedings should be joined for resolution in a single

judgment.

4. – In considering the thema decidendum, it should first be pointed out that, leaving

aside the generic and undifferentiated nature of the remedy sought, the referring courts

have submitted two general questions for review by this Court.

In the first place, they challenge the constitutionality of the choice of

criminalisation underling the contested provision on various grounds, thereby raising

complaints which – should they prove to be well founded – would be the prelude to the

complete erosion of the provision’s validity. Secondly, they claim that specific features

of the substantive or procedural arrangements governing the offence under examination

violate the Constitution, thereby raising challenges aimed at achieving – should they be

accepted – a ruling that the provisions are partially unconstitutional.

Having specified the above, the Court finds that the questions raised are in part

groundless and in part manifestly inadmissible.

5. – With reference to the questions falling under the first group (namely those

seeking to challenge the choice of criminalisation expressed by the contested provision

on a global level) – to which attention must be directed as a matter of priority since it is

evidently a preliminary issue in logical terms – the constitutional review must inevitably

be guided by the principle, asserted within the settled case law of this Court, whereby

the identification of punishable conduct and the classification of the relative penalties

fall within the discretion of the legislature: the exercise of this discretion may be a

matter for review as to its constitutionality only if it results in manifestly unreasonable

or arbitrary choices (inter alia, judgments no. 47 of 2010, no. 161, no. 41 and no. 23 of

2009 and no. 225 of 2008).

6. – Given the above, it is the challenge alleging the violation of the principles of

the tangible nature and necessarily offensive nature of the offence formulated by the

Turin Justice of the Peace with reference to Article 25(2) of the Constitution that comes

18/36

to the fore first and foremost of significance, due to the fact that it lies at the root of the

entire issue.

6.1. – In this regard, the objection that the question is inadmissible, raised by the

Avvocatura dello Stato on the basis of the generic argument that the violation of

constitutional law averred lacks any “relevance for the trial before the lower court” must

be rejected. On the contrary, it is evident that were the contested provision to be

removed as a result of the acceptance of the question, this would have an effect on the

outcome in the main proceedings, which would otherwise – as asserted in the referral

order – be destined to conclude with a ruling that the accused has committed the offence

concerned.

6.2. – However, no violation of the Constitution may be ascertained on the merits.

Contrary to the assertions of the referring court, it is not possible to conclude that,

by introducing into the legal order the offence of the “illegal entry into and stay in the

territory of the State”, Article 10a of Legislative Decree no. 286 of 1998 penalises a

mere “personal and social condition” – namely that of the “illegal immigrant” (or, more

properly, the “irregular” foreign national) – who is arbitrarily deemed to be a danger to

society. The object of the offence is not a “manner of being” of the person, but specific

conduct in breach of applicable legislation. In this case, the relevant conduct is that

described in the alternative phrases “enter into” and “remain” within the territory of the

State in breach of the provisions of the consolidated text on immigration or the

legislation governing short-term stays for visits, business, tourism and study, pursuant to

Article 1 of Law no. 68 of 2007: these phrases correspond, respectively, to a synchronic

act (the illegal crossing of the national borders) and conduct of an ongoing nature, the

illegal core of which is an omission (the failure to leave the national territory,

notwithstanding the failure to hold a permit legitimising one’s presence).

Status as a so-called “illegal immigrant” is not a pre-existing given that is

extraneous to the offence, but on the contrary is the consequence of the very same

conduct that is criminalised, encapsulating its unlawful nature (no differently from the

way in which the status of previous offender for particular offences results from the fact

that those offences have been committed, as subsequently ascertained by the courts).

19/36

6.3. – Moreover, the Court cannot endorse the argument that this case involves an

unlawful act “of mere disobedience” that does not infringe any legal interest which

deserves protection – even solely by jeopardising it. Thus its punishment is claimed to

establish an instance of “criminal law guilt due to personal characteristics”, which is

underpinned by the intention to criminalise situations of poverty and marginalisation

per se (similar to the situation which occurred in the past for the minor offence of “non-

invasive begging” provided for under Article 670(1) of the Criminal Code, which was

struck down as unconstitutional in judgment no. 519 of 1995).

The legal interest protected under the provision creating the offence can in reality

easily be identified as the State’s interest in the control and management of migratory

flows in accordance with a specific legislative framework: the adoption of this interest

as the object of criminal law protection cannot be regarded as irrational or arbitrary –

since it moreover amounts to a “category” legal interest [i.e. an interest of a specified

class], a common feature of most of the criminal law provisions contained in the

consolidated text of 1998 – and which may moreover be breached by the conduct of

illegal entry and stay by a foreign national.

The orderly management of migratory flows is presented in this case as an

“instrumental” legal interest, by safeguarding which Parliament has provided an

advance form of protection for the entire body of “final” public interests – of certain

constitutional significance – that are liable to be negatively affected by uncontrolled

immigration. This approach follows a strategy of intervention analogous to that which

characterises vast areas of complementary criminal law, in which the criminal penalty –

especially for minor offences – is associated with the violation of administrative

provisions relating to the regulation and control of particular activities, and is intended

to safeguard on a pre-emptive basis those interests, which are often supra-individual and

are exposed to danger from the indiscriminate exercise of those activities (it is sufficient

for example to consider the criminal law provisions associated with town planning, the

environment, the financial markets and workplace safety). In the case under

examination, this characteristic is moreover reflected in the low level of the criminal

law’s response set forth in the contested provision, which is merely pecuniary in nature.

20/36

It cannot be disputed that the power to regulate immigration is one of the essential

features of State sovereignty as an expression of territorial control. As this Court has

previously remarked, “the State cannot […] relinquish the ineluctable task of guarding

its own borders: the rules laid down to govern an orderly migratory flow and an

adequate welcome must therefore be respected, and not ignored […], since they have

been enacted in order to defend the national collectivity, as well as to protect those who

have respected them and who may suffer harm form the tolerance of illegal situations”

(judgment no. 353 of 1997). Indeed, the legislation governing the entry into and stay in

Italy by foreign nationals is “associated with the consideration of various public

interests such as, for example, security and public health, public order, restrictions of an

international nature and the national policy on immigration” (judgments no. 148 of

2008, no. 206 of 2006 and no. 62 of 1994). These are restrictions and policies which, in

turn, are the result of assessments relating to the socio-economic “sustainability” of the

phenomenon.

On the other hand, the legal regulation of immigration – which is undoubtedly for

the State (judgment no. 5 of 2004), in order to protect values of constitutional standing

and to comply with international obligations – necessarily entails the classification of

the violation of the rules through which that control manifests itself as an unlawful act.

The determination of the most appropriate response to that offence in terms of

punishment, and specifically to determine whether it is to be regulated under the

criminal law rather than merely under administrative law (as was the case prior to the

entry into force of Law no. 94 of 2009), falls to the discretionary choice of the

legislature, which may indeed modify the quality and level of the criminal law provision

in this area differently over time – depending upon changes in circumstances and the

size of the migratory phenomenon along with the differing significance of the

requirements associated with it.

6.4. – Within this perspective, the lower court’s view that the criminal offence has

essentially introduced an absolute presumption of the social dangerousness of an illegal

immigrant which does not reflect id quod plerumque accidit, and is hence arbitrary, is

also groundless.

21/36

In a similar manner to the offence of the failure to comply with a deportation order

pursuant to Article 14(5b) of Legislative Decree no. 286 of 1998 – which, as this Court

has already held, “is a separate matter to any ascertained or presumed dangerousness of

the individuals concerned” (judgment no. 22 of 2007) – the contested provision does not

establish any presumption of that fact, but is limited – on a similar basis to criminal law

provisions in general – to punishing the commission of an objectively unlawful act

which infringes an interest deemed to deserve protection. As the Avvocatura Generale

dello Stato also notes, this violation may be ascertained irrespective of the author’s

personality, which may be of significance, if at all, only during sentencing by the court,

according to the criteria laid down by Article 133(2) of the Criminal Code.

Therefore, for our present purposes, it is not possible to rely on this Court’s

assertion whereby the individual situation brought about by the “failure to hold legal

authorisation to stay within the territory of the State […] is not per se unequivocally

symptomatic […] of any particular social dangerousness” (judgment no. 78 of 2007).

This assertion was in fact made within an entirely different context to that at issue here,

namely in support of the ruling that certain provisions of the law on prisons were

unconstitutional (Articles 47, 48 and 50 of Law no. 354 of 26 July 1975), if these were

interpreted to the effect that illegal immigrants were not under any circumstances

eligible for the measures alternative to detention provided for thereunder. In fact, these

measures were associated with the need to tailor the sentence to the convicted person’s

individual circumstances during enforcement, with respect to which the assessment of

that individual’s social dangerousness – which is to be carried out case by case, and not

on the basis of arbitrary and absolute presumptions – is conversely of primary

significance.

6.5. – To conclude on this point, it must on the other hand be pointed out that the

choice made by the Italian Parliament in the 2009 amendment is far from isolated

within the international context.

Indeed, a comparative analysis reveals that provisions creating an offence of illegal

immigration of similar inspiration – which are at times accompanied by sentences that

are even significantly more severe that those provided for under the contested provision

– are present within the legislation of various countries of the European Union: both

22/36

within those of the countries closest to our legal traditions (such as France and

Germany) as well as those hailing form a different tradition (such as the United

Kingdom).

7. – It is already inherent within the above considerations that there has been no

violation of the principle of equality (Article 3 of the Constitution), as alleged by the

Turin Justice of the Peace on the grounds that, by indiscriminately punishing a foreign

national who has entered into or remained illegally within the territory of the State, the

new Article 10a of Legislative Decree no. 286 of 1998 treats as equivalent cases that are

decidedly heterogeneous and individuals that pose differing dangers to society (such as

a foreign national who has illegally crossed the national borders and who lives from the

proceeds of crime, and the migrant who has illegally remained following lawful entry

though he is well integrated into the social community and has a job).

It is first of all reiterated that the criminal law provision under examination is not

intended to punish the “lifestyle” and goals of an illegal migrant (which, where they are

of significance under the criminal law, will be punished as appropriate by other

provisions), as rather (and solely) the failure by the foreign national to comply with the

provisions governing entry into and stay within the territory of the State.

However, the differing degree of seriousness of this breach may be assessed and

quantified by the court when setting the actual penalty within the limits of the tariff

differential, which is sufficiently broad for that purpose, as well as when classifying the

offence as a minor offence punished solely by a pecuniary penalty (a fine of between

5,000 and 10,000 Euros). Under the settled case law of this Court, Parliament is in fact

permitted to include a range of conduct with distinct structure and censurable result

under the umbrella of a single offence, and in these cases it is for the court to establish

the difference between the various forms of conduct by imposing a sentence between

the minimum and maximum tariffs (see, inter alia, judgment no. 47 of 2010, and orders

no. 213 of 2000, no. 145 of 1998, no. 456 of 1997 and no. 220 of 1996).

With particular regard on the other hand to the situation of a “marginal” nature –

which the lower court invokes with reference to the situation of a foreign national who

remains in Italy beyond the expiry of his entry visa on purely contingent grounds (such

as having missed the plane or not having received money from relatives abroad in order

23/36

to purchase the travel ticket) – it is also necessary to take account of the fact that the

vesting of jurisdiction over the offence under examination in the justice of the peace

allows the operation of the rule whereby the prosecution is not to be continued if the

nature of the conduct is “particularly slight” pursuant to Article 34 of Legislative Decree

no. 274 of 2000. Where the prerequisites specified under that Article are met, this

institution may have the effect of exempting irregularities of more reduced significance

from punishment.

8. – With regard to the additional challenge, formulated again by the Turin Justice

of the Peace, alleging the infringement of inviolable human rights and the principle of

solidarity (Article 2 of the Constitution), the objection by the Avvocatura dello Stato

that it is inadmissible, based on the consideration that, according to the referral order,

the accused in the proceedings before the lower court is not living in extreme poverty

and has a job, is groundless.

Indeed, the objection overlays the issues of relevance and non-manifest

groundlessness. The fact that it is liable to affect persons who are living in a “state of

extreme poverty” is in fact mentioned by the referring court as a general characteristic

of the criminal law provision which is liable to bring it into alleged contrast with the

constitutional principle considered. However, this does not mean that – for the purposes

of the admissibility of the question – it must also obtain in the actual case in which an

interlocutory ruling was made to this Court, and the question in any case remains

relevant due to the impact, as pointed out, which the striking down of the contested

provision would have on the outcome in the principal trial.

On the merits, there is no such violation as averred.

It should be pointed out as a preliminary matter in this regard that, if the referring

court’s argument were valid, the ground for unconstitutionality would not lie in the

choice to classify the failure to comply with the legislation governing the entry into and

stay within the territory of the State by a foreign national as an offence – that is, in the

punishment – but rather upstream in the very principle, that is to say in the very rules –

outwith the scope of the provision currently subject to review – that preclude or limit

the entry into or stay within the territory of the State by foreign nationals (or at the very

24/36

least or “extremely poor” foreign nationals), irrespective as to whether the violation is

punished under the criminal law or with a simple administrative penalty.

In addition, it should also be pointed out that, whilst the breach of inviolable human

rights is alleged by the referring court in entirely incontrovertible terms, as far as the

principle of solidarity is concerned it is the settled case law of this Court – which has

been called upon to deal with this issue specifically in relation to the legislation

governing the prohibition on expulsion and refusal of entry and family reunification

(Articles 19 and 29 of Legislative Decree no. 286 of 1998) – that, in matters relating to

immigration, “the requirements of human solidarity cannot be asserted unless a correct

balance of the values in play is struck” (judgment no. 353 of 1997). In particular, “the

requirements of human solidarity are not per se at odds with the rules on immigration

put in place in order to ensure an orderly migratory flow and an adequate welcome and

integration of foreign nationals” (orders no. 192 and no. 44 of 2006 and no. 217 of

2001). Moreover, this balance must be struck within the context of a “legislative

framework […] which regulates in a different manner – including under constitutional

law (Article 10(3) of the Constitution) – the entry into and stay within the country of

foreign nationals, depending upon whether they are asylum seekers or refugees, or so-

called ‘economic migrants’” (judgment no. 5 of 2004; orders no. 302 and no. 80 of

2004). The legislature therefore has a broad range of discretion in this area when

placing limits on the entry by foreign nationals into the territory of the State, upon

conclusion of a balancing of the values that are of significance: the exercise of this

discretion may only be reviewed by this Court if the choices made are clearly

unreasonable (inter alia, judgments no. 148 of 2008, no. 361 of 2007, no. 224 and no.

206 of 2006) and, according to the observations made above, this principle also extends

to the issue of the selection of the forms of punishment for the offences committed.

In this regard, the requirements of solidarity manifest themselves not only in the

legislation referred to above governing the prohibition on expulsion and refusal of entry

and family reunification, but also to the applicability to illegal immigrants of the

legislation on support for refugees and international protection laid down by Legislative

Decree no. 251 of 19 November 2007 (Implementation of Directive 2004/83/EC on

minimum standards for the qualification and status of third country nationals or stateless

25/36

persons as refugees or as persons who otherwise need international protection and the

content of the protection granted), without prejudice to Article 10a(6) of Legislative

Decree no. 286 of 1998, which provides that criminal proceedings relating to the

offence under examination are to be suspended if an application is submitted and, if that

application is accepted, that the court is to issue a ruling that there are no grounds to

prosecute (provision is also made for an analogous ruling in the event that a residence

permit is issued pursuant to Article 5(6) of Legislative Decree no. 286 of 1998, that is

when there are “serious grounds […] of a humanitarian nature or resulting from the

obligations of the Italian State under constitutional or international law”, even where the

conditions for exclusion specified thereunder are met).

9. – The Court also finds that there has been no violation of Article 117(1) of the

Constitution, as argued by the Lecco Justice of the Peace due to the alleged breach by

the contested provision of Directive 2008/115/EC, specifically insofar as the latter

specifies the setting of a time limit for “voluntary departure” (Article 7) as the ordinary

procedure for implementing “decisions to return” the third-country nationals whose stay

is illegal.

It is not necessary to verify before this Court the real validity of the argument on

which this challenge is based, essentially consisting in the argument that the Member

States’ right not to apply the above directive to “third-country nationals […] who are

subject to return as a criminal law sanction or as a consequence of a criminal law

sanction” (Article 2(2)(b)) must be deemed to relate exclusively to criminal offences

other than illegal entry or stay, unless the directive is to be deprived of all meaning.

It is sufficient to note that the time limit for bringing national law into line with the

Directive has not yet expired, having been set for 24 December 2010 (Article 20). As

things stand, this fact means that the breach of Community law mooted is in any case

irrelevant in determining whether the Constitution has been violated.

Moreover, any such contrast would not in any case result from the introduction of

the offence under review as rather – hypothetically – from the maintenance of the

previous national legislation that specify deportation as the normal procedure for

enforcing expulsion orders (in particular, Article 13(4) of Legislative Decree no. 286 of

1998), which is therefore different from the legislation challenged.

26/36

10. – The complaint alleging the violation of the principles of reasonableness and

the proper administration of public offices (Articles 3 and 97 of the Constitution)

formulated by the Turin Justice of the Peace on the basis of the consideration that the

contested provision, considered overall, pursues an objective (the removal of foreign

nationals illegally present within the territory of the State) that could be achieved in the

same manner through the institution of administrative expulsion, thereby giving rise to a

pointless duplication of proceedings with the same purpose, is also groundless.

As far as the first of the two principles invoked is concerned (the principle of

reasonableness), it is indeed the case that the conduct constituting the offence

concerned, which also amounts to a violation of the legislation on the entry into and

stay within the territory of the State by a foreign national, has been and continues to be

punished on an administrative level by expulsion ordered by the Chief of Police

pursuant to Article 13(2) of Legislative Decree no. 286 of 1998. This means that there is

an overlap – potentially complete – between the criminal and administrative law.

However, it is also the case that, in the light of the overall structuring of the

provision under examination, Parliament has demonstrated that it regards the

application of the criminal penalty as a “subordinate” outcome compared to the actual

removal from the national territory of illegally staying foreign nationals. This is

unequivocally demonstrated by the following facts highlighted by the lower court: first

that, notwithstanding the general provisions of Article 13(3) of Legislative Decree no.

286 of 1998, a foreign national subject to prosecution for the offence concerned may be

expelled by an administrative measure without clearance from the courts; secondly that,

once notice of expulsion or refusal of entry pursuant to Article 10(2) of Legislative

Decree no. 286 of 1998 has been received, the court must issue a ruling that there are no

grounds to prosecute (irrespective of the stage of the criminal proceedings, in contrast to

the provisions of Article 13(3c) of Legislative Decree no. 286 of 1998); and thirdly that,

if the individual is convicted, the fine – which is expressly ineligible for immediate

payment extinguishing prosecution (Article 10a(1), second sentence, of Legislative

Decree no. 286 of 1998) – may be replaced by the judge with an order of expulsion for a

period not shorter than five years (Articles 16(1) of Legislative Decree no. 286 of 1998

and 62a of Legislative Decree no. 274 of 2000).

27/36

This legislative framework – the rationale for which lies mainly “in the reduced

interest of the State in the punishment of individuals who have already been removed

from its territory” (with reference to the provisions of Article 13(3c) of Legislative

Decree no. 286 of 1998, orders no. 143 and no. 142 of 2006), which is even more

tangibly felt when the conduct relevant under criminal law consists in the mere violation

of the legislation governing entry into and stay within the territory of the State – does

not however mean that prosecutions for the offence are by definition destined to amount

to a mere “duplicate” of the administrative expulsion proceedings (which are moreover

normally more rapid). This is because, leaving aside all other considerations, as

experience shows, in a large number of cases it is not possible for the public

administration to implement expulsion orders. The very replacement of the pecuniary

fine with an expulsion order by the court – which Article 16(1) of Legislative Decree

no. 286 of 1998 moreover classifies merely as a matter of discretion (“may”) – remains

expressly subject to the requirement that no circumstances obtain which, pursuant to

Article 14(1) of Legislative Decree no. 286, prevent the enforcement of the expulsion

through deportation by the law enforcement authorities (the requirement to provide

assistance to the foreign national, to carry out additional checks regarding his identity or

nationality or to obtain travel documents or the unavailability of a carrier or another

appropriate means of transport).

Secondly, it is also difficult to dispute the fact that – as has been critically remarked

from several quarters – the penalty of a fine applicable in cases in which expulsion is

not enforced (or cannot be enforced immediately) has a reduced persuasive capacity.

This is due to the fact that illegal migrants are very often (though nonetheless not

without exception) impecunious and the difficulty in converting an unenforced penalty

into an alternative working penalty or house arrest (Article 55 of Legislative Decree no.

274 of 2000), given the problem relating to the compatibility of these measures with the

personal circumstances of the convicted individual, who often lacks a fixed abode, and

in any case cannot legally reside in Italy.

However, similar considerations – in the same manner as those relating more

generally to the relationship between “costs” and “benefits” associated with the

introduction of the new criminal offence, a balance which according to many leans

28/36

heavily towards the costs (especially under a system which provides for an expulsion

order by the Chief of Police if expulsion is not enforced immediately, which sets in

motion the more robust criminal law protection provided for under Article 14(5b) of

Legislative Decree no. 286 of 1998) – apply to the appropriateness of the legislative

choice in terms of criminal and judicial policy, a level which is per se not amenable to

constitutional review. As has already been noted in relation to a different issue in fact,

“it is not for this Court to make assessments as to the efficacy of the criminal law

provision against unlawful conduct that manifests itself in relation to the imposing

phenomenon of present day migratory flows, which poses serious problems from a

social, humanitarian and security perspective” (judgment no. 236 of 2008).

Moreover, it is not superfluous to add that the subjection of immigration offences to

pecuniary penalties is also far from unknown within a comparative perspective

(pecuniary penalties, as an alternative to or in addition to the custodial sentence, are for

example provided for under German, French and British legislation, whilst Spanish law

contemplates only administrative pecuniary penalties for illegal residence).

The other parameter relied on by the referring court is also immaterial, namely the

principle of the proper administration of public offices. Indeed, according to the settled

case law of this Court, this principle relates to the administration of justice only insofar

as it concerns the organisation and functioning of judicial offices, and not judicial

activity stricto sensu (see inter alia judgments no. 64 of 2009 and no. 272 of 2008,

orders no. 408 of 2008 and no. 27 of 2007).

11. – Moving on to examine the second group of questions concerning specific

segments of the legislation governing the offence under discussion, the first issue which

comes into consideration is that relating to the failure to repeat the clause “without

justified reason” contained in the “adjacent” criminal law provision set forth in Article

14(5b) of Legislative Decree no. 286 of 1998 in relation to illegal stays. This provision

punishes – indeed more severely – a special form of unlawful presence of a foreign

national in the State, namely that resulting from the failure to comply with an order by

the Chief of Police to leave the national territory within five days, issued pursuant to

paragraph 5a of the same Article.

11.1. – The question is groundless.

29/36

This Court has had the opportunity to rule on the value of the formula “without

justified reason”, which appears in the provision invoked as a comparator, in relation to

questions of constitutionality specifically involving objections as to the lack of precision

in that clause and, by extension, the criminal offence to which it relates. In dismissing

the objection, the Court held that the meaning of the term may in reality be established –

through an interpretation which does not reach beyond the ordinary interpretative task

of the courts – in the light of the specific goal of the offence (removal, giving “effect to

the expulsion order”, “situations of illegality or danger associated with the foreign

national’s presence within the territory of the State”) and the legislative framework

against which the offence was created. As recalled above in relation to a separate issue,

this legislative framework regulates the entry into and stay within the territory of the

State by foreign nationals differently, depending upon whether they have applied for

asylum or refugee status, or are “economic migrants”. From a similar perspective,

“whilst the clause concerned cannot be deemed to evoke grounds for justification in a

technical sense only – a reading that would render it superfluous, given that the ordinary

exclusions, as institutions of general application, would in any case apply – it

nonetheless relates to impediments of particular significance which affect the subjective

and objective ability to comply with the order, rendering it impossible, difficult or

dangerous. However, it does not also apply to needs that reflect the typical condition of

an “economic migrant” (even though these are an expression of considerations that are

in themselves entirely legitimate) unless – as is obvious – circumstances obtain that can

fall under the exclusions provided for under the legal order” (judgment no. 5 of 2004;

orders no. 386 of 2006, no. 302 and no. 80 of 2004).

In the light of this conclusion, the Court therefore rules groundless the further

objections of unconstitutionality, according to which the provision for a criminal

offence contained in Article 14(5b) of Legislative Decree no. 286 of 1998 established a

strict liability offence – in breach of Article 27 of the Constitution – subjecting to

punishment also a foreign national who is in practical terms unable to procure travel

documents and tickets within the limited time limit of five days, for example due to his

“condition of absolute impecuniosity […], which does not permit him to arrive at the

border on time (especially an air or sea border) and to purchase” the said ticket, or as a

30/36

consequence of the “failure by the competent diplomatic or consular authorities to issue

the necessary documents, notwithstanding that they were promptly and correctly applied

for”. In such cases, it is undoubtedly necessary to conclude that there was a “justified

reason” for the failure to comply with the order to leave, with the result that no offence

was committed (judgment no. 5 of 2004; orders no. 386 of 2006 and no. 302 of 2004).

11.2. – It is not legitimate to infer from this Court’s assertions mentioned above – as

however the Lecco Justice of the Peace seeks to conclude – that the insertion into the

actus reus of the offence of the clause “without justified reason” is indispensable in

order to ensure compliance with the principle of blame applicable to all immigration

offences, and in particular that currently subject to review.

Whist it may indeed be the case, as already noted above, that the scope of that

clause reaches beyond the mere reference to exclusions of a general nature, it is equally

certain however that the absence of the clause does not prevent the general exclusions

from applying nonetheless, which is in any case sufficient to guarantee compliance with

the constitutional principle invoked (otherwise, that clause would have to be contained

in any provision establishing a criminal offence).

Thus, it is beyond discussion that the common exclusions also apply to the offence

of illegal entry into and stay within the territory of the State – including in particular the

defence of necessity (Article 54 of the Criminal Code) – as well as the grounds for

exclusion of blame, including the unavoidable ignorance of the criminal law (Article 5

of the Criminal Code, as in force following judgment no. 364 of 1988 of this Court),

which the referring court specifically cites when critically commenting on situations

involving foreign nationals who do not understand Italian or who enter into contact with

the national legal system for the first time.

With particular reference to the figure of illegal stay – to which the interlocutory

reference is limited – the basic principle of ad impossibilia nemo tenetur, which is

applicable to omissions in general, also continues to apply. In fact, a widespread view

regarding such situations is that the (material or legal) inability to carry out the action

requested precludes the commission of an offence not only due to the lack of blame, but

also on a prior objective level, since this amounts to a logical limit on the very

possibility of the omission. It follows that, in this regard, a variety of situations relevant

31/36

as a “justified reason” for the offence of the failure to comply with the order to leave

may indeed be taken into consideration in any decision that no offence has been

committed pursuant to Article 10a of Legislative Decree no. 286 of 1998 (consider for

example a situation where the foreign national does not have the documents necessary

in order to leave the national territory legally on grounds outwith his control).

11.3. – There is indeed still a difference compared to the criminal offence provided

for under Article 14(5b), due to the greater scope of the situations falling under the

concept of “justified reason” compared to the general grounds for exemption from

punishment. However, this difference does not result in the violation of Article 3 of the

Constitution as objected by both referring courts, due to the fact that the offences are

structured differently as well as the fact that they are regulated by different legislation.

As has already been observed by this Court elsewhere in fact, “Parliament’s choice

to grant justificatory effect to impediments different from exclusions of a general nature

in respect of the offence of the failure to comply with an order to leave the country

issued by the Chief of Police is grounded on the special nature of that form of

expulsion, the enforcement of which is left to the foreign national, and the adoption of

which is only permitted when deportation, as appropriate preceded by the detention of

the interested party in a centre for identification and expulsion, is not possible” (order

no. 41 of 2009, which consequently held that there was no constitutional requirement to

extend the “without justified reason” clause to the criminal offence, consisting in an

action, regulated under Article 14(5c), which provides that a foreign national who is

found within the national territory after having been expelled pursuant to paragraph 5b

has committed an offence).

Within the legislative scheme (Article 14(1) of Legislative Decree no. 286 of 1998),

the prerequisites which authorise the administration to issue an order to leave,

notwithstanding the principle that forced expulsion is to be enforced immediately, in

effect recall requirements that frequently arise in situations involving significant

difficulty in timely compliance by the recipient of the order (judgment no. 5 of 2004,

order no. 386 of 2006). Against this backdrop therefore, the use of the clause concerned

amounts to an element that contributes to render constitutionally “tolerable” the severity

of the punishment associated with the criminal offence (judgment no. 22 of 2007).

32/36

The minor offence introduced by the contested Article 10a of Legislative Decree no.

286 of 1998, which punishes with a simple pecuniary penalty the generic failure to

comply with the law on the residence of (and entry by) a foreign national in(to) the

territory of the State is not comparable on these grounds. This is the case irrespective of

the issue of an individual administrative order which is characterised by a limited time

for compliance and liable to set in motion a decisive “quality increase” in the criminal

law’s response.

A different instrument of “moderation” of the punishment applies in relation to the

minor offence concerned, which does not by contrast apply in relation to the offence

used as a comparator. In this case, this is the rule whereby the prosecution will not be

continued due to the particularly slight nature of the conduct (Article 34 of Legislative

Decree no. 274 of 2000) already noted above, which is applied by the vesting of

jurisdiction over the offence under examination in the justice of the peace. In specifying

the prerequisites of the slight nature of the breach of the protected interest, the

occasional nature of the breach, the reduced level of blame and the detriment that would

be caused by prosecution on requirements relating to the employment, study, family or

health of the accused, the regulation of this institution may have the effect of

“offsetting” the failure to attribute significance to the existence of a “justified reason”

which falls beyond the scope of the general grounds for exemption from punishment.

12. – On the other hand, the question raised by the Turin Justice of the Peace with

reference to Article 3 of the Constitution, concerning the right of the court, in the event

of a conviction, to replace the pecuniary penalty imposed for the offence provided for

under Article 10a of Legislative Decree no. 286 of 1998 with an expulsion order, is

manifestly inadmissible.

Leaving aside all considerations as to the merits of the argument, the contested

violation of the Constitution does not result from the contested provision, but from

distinct provisions not subject to constitutional review: in this case from Article 16(1) of

Legislative Decree no. 286 of 1998 insofar as – following the amendment introduced by

Law no. 94 of 2009 – it extends the applicability of expulsion as an alternative penalty

for the offence under Article 10a of Legislative Decree no. 286, as well as the associated

provision contained in Article 62-bis of Legislative Decree no. 274 of 2000, according

33/36

to which – in contrast to the provisions set forth in Article 62 above with reference to

the alternative penalties provided for under Law no. 689 of 24 November 1981

(Amendments to the criminal law system) – “the justice of the peace shall apply the

alternative measure provided for under Article 16 of the consolidated text contained in

Legislative Decree no. 286 of 25 July 1998 in the cases specified by law”.

Since the question is manifestly inadmissible, the submissions made by the

Avvocatura dello Stato concerning the – presumably – solely hypothetical nature of the

applicability of the alternative measure in this case are moot.

13. – In arguing that the overall sanctions regime in place for the offence under

Article 10a of Legislative Decree no. 286 of 1998 is unconstitutional, the Turin Justice

of the Peace also argues that Article 3 of the Constitution has been violated due to the

prohibition on granting the conditional suspension of the sentence.

This question is also manifestly inadmissible.

The exclusion of conditional suspension does not in fact result from Article 10a of

Legislative Decree no. 286 of 1998 either, as rather from the new letter s-a of Article

4(2) of Legislative Decree no. 274 of 2000, which vests jurisdiction over the offence

under examination in the justice of the peace, thereby activating the provisions of

Article 60 of Legislative Decree no. 274. However, these provisions have not been

referred for scrutiny.

In any case, there is no motivation either as to the relevance of the question (it is not

asserted that in this case the accused could have benefited from conditional suspension

in the light of the general rules contained in the Code) or its non-manifest

groundlessness (Article 3 of the Constitution is claimed to have been violated in a

purely axiomatic manner).

14. – An analogous conclusion must be reached as regards the question concerning

the provisions of Article 10a(5) of Legislative Decree no. 286 of 1998, according to

which the court is to issue a ruling that there are no grounds to prosecute whenever it

receives information that the administrative expulsion order against the author of the

offence has been enforced or he has been refused entry pursuant to Article 10(2) of the

consolidated text. According to the Lecco Justice of the Peace, this provision violates

Articles 3 and 27 of the Constitution since it renders the application of the penalty for

34/36

the offence under examination dependent upon the actions of the administrative

authorities.

The objection raised by the State representative that this question is inadmissible is

groundless. The reference by the lower court to the fact that, if it is impossible for the

administrative authorities to enforce the expulsion order, the foreign national will be

issued with an order to leave the territory of the State – thereby becoming liable to the

more severe penalty imposed by Article 14(5b) of Legislative Decree no. 286 of 1998

should he fail to comply with the order – is not in fact sufficient to substantiate the

argument by the Avvocatura dello Stato according to which the referring court is in

reality objecting to the latter provision only, which is not at issue in the main

proceedings.

If the question is nonetheless irrelevant for the different reason that, according to

the referral order, it does not appear that the accused in the proceedings before the lower

court was actually expelled or refused entry, with the result that the requirement that the

legislative provision challenged was applied is not met (for an analogous ruling of

manifest inadmissibility in relation to a question of constitutionality concerning the

general provisions governing rulings that prosecution will not be continued due to

expulsion pursuant to Article 13(3c) of Legislative Decree no. 286 of 1998, see order

no. 142 of 2006).

15. – The question raised by the Turin Justice of the Peace with reference to Article

24(2) of the Constitution challenging the failure to make provision for transitory

arrangements that may safeguard foreign nationals illegally staying within the territory

of the State at the time of entry into force of Law no. 94 of 2009 is also manifestly

inadmissible.

In fact, the question essentially amounts to a request for a substantive ruling, the

contents of which are undefined and not mandatory under constitutional law. In effect, it

cannot be for this Court to specify “a time limit and operational procedure” in order to

permit the said foreign nationals to leave Italy voluntarily without incurring criminal

responsibility, as this is an operation that implies discretionary choices which are vested

exclusively in the legislature.

35/36

16. – The objection alleging the violation of Article 24(2) of the Constitution raised

by the same referring court in relation to the alleged introduction of an obligation on

illegal immigrants responsible for complying with the obligation relating to compulsory

schooling provided for under Article 38 of Legislative Decree no. 286 of 1998 to turn

themselves in is also manifestly inadmissible.

In fact, once again, the contested violation of constitutional law would not result

from the offence created under Article 10a of Legislative Decree no. 286 of 1998, but if

at all, according to the referring court’s account, from the defective coordination

between certain “collateral” provisions (Articles 6, 35 and 38 of Legislative Decree no.

286 of 1998), and more specifically from the failure by Article 38 to make provision for

an exemption from the obligation on the school’s staff to report the illegal immigrant to

the competent authorities, analogous to that enshrined under Article 35(5) of Legislative

Decree no. 286 of 1998 in relation to healthcare staff.

Besides, these “collateral” provisions are not specified in the challenge, and in any

case are not an issue in the proceedings before the lower court.

17. – Finally, the question raised by the Turin Justice of the Peace with reference to

Articles 3 and 24(2) of the Constitution concerning the failure to make provision for

guarantees in favour of a foreign national who submits an application to stay in Italy for

serious reasons associated with the protection of family members who are minors

pursuant to Article 31(3) of Legislative Decree no. 286 of 1998 is also manifestly

inadmissible due to lack of relevance.

This is because the referral order does not state whether the accused in the

proceedings before the lower court has submitted such an application.

ON THOSE GROUNDS

THE CONSTITUTIONAL COURT

hereby,

36/36

1) rules that the questions concerning the constitutionality of Article 10a of

Legislative Decree no. 286 of 25 July 1998 (Consolidated text of provisions concerning

the regulation of immigration and rules on the status of foreigners), introduced by

Article 1(16)(a) of Law no. 94 of 15 July 2009 (Provisions on public security), referred

to in paragraphs 6, 7, 8, 9, 10 and 11 of the Conclusions on points of law, raised with

reference to Articles 2, 3, 25(2) 27, 97(1) and 117 of the Constitution by the Lecco

Justice of the Peace, Missaglia division, and the Turin Justice of the Peace by the

referral orders mentioned in the headnote, are groundless;

2) rules that the questions concerning the constitutionality of Article 10a of

Legislative Decree no. 286 of 25 July 1998, referred to in paragraphs 12, 13, 14, 15, 16

and 17 of the Conclusions on points of law, raised with reference to Articles 3, 24(2)

and 27 of the Constitution by the Lecco Justice of the Peace, Missaglia division, and the

Turin Justice of the Peace by the same referral orders, are manifestly inadmissible.

Decided in Rome at the seat of the Constitutional Court, Palazzo della Consulta, on

5 July 2010.

Signed:

Francesco AMIRANTE, President

Giuseppe FRIGO, Author of the Judgment

Giuseppe DI PAOLA, Registrar

Filed in the Court Registry on 8 July 2010.

The Director of the Registry

Signed: DI PAOLA